The Seal Products Ban and "Non-Instrumental Public Morals" Measures

In the U.S., everyone is focused on today's health care ruling. If you can tear yourself away (or if you are from somewhere else and/or just don't care), let me mention the Opinio Juris discussion of an article by Rob Howse and Joanna Langille. Here is a snippet of their argument:

Our article examines the extent to which countries can use animal welfare concerns to justify placing restrictions on international trade, under the law of the World Trade Organization (WTO). We argue that noninstrumental moral and religious concerns are a legitimate source of trade policy. To make this claim, we examine a current WTO dispute between the European Union (EU), Canada, and Norway. The European Union has banned seal products from being sold in the European Union, because of animal welfare concerns regarding how the animals are hunted and skinned. Canada and Norway have challenged this regulation at the WTO, arguing that animal welfare is not a legitimate objective for restricting trade.

...

we set out the strong institutional reasons to avoid interpretations of WTO law that would deny countries the ability to regulate for moral reasons. If the WTO were to do this, it would risk attempting to impose a secular, materialist, instrumentally rational worldview on its member states. Instead, the WTO should permit pluralism—competing notions of righteousness—and allow countries to regulate for moral reasons (with the recognition of course that states are also bound by non-WTO norms, such as international human rights law, which also shape the limits of their prerogative to regulate morality). The WTO legal framework, moreover, must be read so as to accept that animal welfare measures may at the same time have both a utilitarian or instrumental aspect (improving animal welfare outcomes) as well as an expressive aspect, indicating moral opprobrium at the inhumane treatment of animals.

I also wonder if there is perhaps a better solution to dealing with any controversy over non-instrumental measures. As I read the article, it seems to me that much of their focus is on refining the typical “exceptions”-type analysis (under which certain policies are explicitly “permitted” even where they violate the rules). Measures “expressing intrinsic moral or spiritual beliefs” are the focus here, but more generally they seem to accept the view that we should identify those domestic preferences or policy areas that are important, and provide explicitly for their use.

This exceptions-based approach, though, may not be the best way to deal with the problem of the intrusion of international rules into domestic policymaking. If we rely on exceptions for permitted policies, then we need them for all of the various policies that we want to make sure governments can pursue. This leads to a number of problems: identifying all of these policies, agreeing on what policies should be included, and deciding how each should be evaluated. The limited set of exceptions in GATT Article XX illustrates these problems, as the provision only lists certain policies, leading to strained efforts to fit other, non-listed policies into the designated categories. A better approach might be to focus less on what policies should be permitted through exceptions, and concentrate instead on what policies international trade rules should prohibit. ...

What I'm getting at here is that relying on necessity tests makes me nervous. I would prefer to define the boundaries of trade law more clearly in the actual obligations (and where the obligation involves necessity -- as with TBT 2.2 -- we might need to re-think it).

In another comment, Isabel Feichtner wonders about the categorization of the measure and talks about rationality tests:

Howse and Langille put forward the thesis that WTO law should permit pluralism in the sense that it should not limit Members’ freedom to restrict trade in pursuit of “noninstrumental moral values”. I find the term “noninstrumental moral values” slightly misleading and would argue that at issue are rather noninstrumental trade measures to realize or express moral values. In the concrete case Howse and Langille consider the seal products ban to be non-instrumental in the sense that it might go beyond what is required to protect animal welfare. This “excess”, according to Howse and Langille, is justified as an expression of EU citizens’ moral disapproval of the seal hunt. Such regulation could also be interpreted as the collective choice of a society not to be complicit through consumption by individual citizens in what it considers a moral wrong. This collective choice may only fully be realized through a ban and not by enabling each individual to make an informed consumption decision, for example on the basis of information provided by a label.

...

Whilst I am sympathetic to the claim that WTO law should allow for noninstrumental measures that restrict trade I am rather skeptical of the view that such measures should not be submitted to a rationality test. ...

Tamara Perisin offers some details of how a seal products measure might be carried out consistently with WTO law:

... It should be especially stressed that this comment does not argue that WTO law prevents the EU or Member States from banning seal products. It merely argues that a trade ban must have a genuine legitimate aim, which it must achieve with coherent and necessary means. This also does not mean that the EU should do less to protect seals. If there are genuine concerns for animal welfare, then the EU can do even more to protect seals – it can ban seal products without any (incoherent) exceptions – i.e. it can require all seal products provided for in the exceptions to comply with humane hunting rules. The EU or its Member States could also ban many other animal products, particularly furs of animals not used for food, which are currently being imported into the EU, as well as being produced there.

Comments

The Seal Products Ban and "Non-Instrumental Public Morals" Measures

In the U.S., everyone is focused on today's health care ruling. If you can tear yourself away (or if you are from somewhere else and/or just don't care), let me mention the Opinio Juris discussion of an article by Rob Howse and Joanna Langille. Here is a snippet of their argument:

Our article examines the extent to which countries can use animal welfare concerns to justify placing restrictions on international trade, under the law of the World Trade Organization (WTO). We argue that noninstrumental moral and religious concerns are a legitimate source of trade policy. To make this claim, we examine a current WTO dispute between the European Union (EU), Canada, and Norway. The European Union has banned seal products from being sold in the European Union, because of animal welfare concerns regarding how the animals are hunted and skinned. Canada and Norway have challenged this regulation at the WTO, arguing that animal welfare is not a legitimate objective for restricting trade.

...

we set out the strong institutional reasons to avoid interpretations of WTO law that would deny countries the ability to regulate for moral reasons. If the WTO were to do this, it would risk attempting to impose a secular, materialist, instrumentally rational worldview on its member states. Instead, the WTO should permit pluralism—competing notions of righteousness—and allow countries to regulate for moral reasons (with the recognition of course that states are also bound by non-WTO norms, such as international human rights law, which also shape the limits of their prerogative to regulate morality). The WTO legal framework, moreover, must be read so as to accept that animal welfare measures may at the same time have both a utilitarian or instrumental aspect (improving animal welfare outcomes) as well as an expressive aspect, indicating moral opprobrium at the inhumane treatment of animals.

I also wonder if there is perhaps a better solution to dealing with any controversy over non-instrumental measures. As I read the article, it seems to me that much of their focus is on refining the typical “exceptions”-type analysis (under which certain policies are explicitly “permitted” even where they violate the rules). Measures “expressing intrinsic moral or spiritual beliefs” are the focus here, but more generally they seem to accept the view that we should identify those domestic preferences or policy areas that are important, and provide explicitly for their use.

This exceptions-based approach, though, may not be the best way to deal with the problem of the intrusion of international rules into domestic policymaking. If we rely on exceptions for permitted policies, then we need them for all of the various policies that we want to make sure governments can pursue. This leads to a number of problems: identifying all of these policies, agreeing on what policies should be included, and deciding how each should be evaluated. The limited set of exceptions in GATT Article XX illustrates these problems, as the provision only lists certain policies, leading to strained efforts to fit other, non-listed policies into the designated categories. A better approach might be to focus less on what policies should be permitted through exceptions, and concentrate instead on what policies international trade rules should prohibit. ...

What I'm getting at here is that relying on necessity tests makes me nervous. I would prefer to define the boundaries of trade law more clearly in the actual obligations (and where the obligation involves necessity -- as with TBT 2.2 -- we might need to re-think it).

In another comment, Isabel Feichtner wonders about the categorization of the measure and talks about rationality tests:

Howse and Langille put forward the thesis that WTO law should permit pluralism in the sense that it should not limit Members’ freedom to restrict trade in pursuit of “noninstrumental moral values”. I find the term “noninstrumental moral values” slightly misleading and would argue that at issue are rather noninstrumental trade measures to realize or express moral values. In the concrete case Howse and Langille consider the seal products ban to be non-instrumental in the sense that it might go beyond what is required to protect animal welfare. This “excess”, according to Howse and Langille, is justified as an expression of EU citizens’ moral disapproval of the seal hunt. Such regulation could also be interpreted as the collective choice of a society not to be complicit through consumption by individual citizens in what it considers a moral wrong. This collective choice may only fully be realized through a ban and not by enabling each individual to make an informed consumption decision, for example on the basis of information provided by a label.

...

Whilst I am sympathetic to the claim that WTO law should allow for noninstrumental measures that restrict trade I am rather skeptical of the view that such measures should not be submitted to a rationality test. ...

Tamara Perisin offers some details of how a seal products measure might be carried out consistently with WTO law:

... It should be especially stressed that this comment does not argue that WTO law prevents the EU or Member States from banning seal products. It merely argues that a trade ban must have a genuine legitimate aim, which it must achieve with coherent and necessary means. This also does not mean that the EU should do less to protect seals. If there are genuine concerns for animal welfare, then the EU can do even more to protect seals – it can ban seal products without any (incoherent) exceptions – i.e. it can require all seal products provided for in the exceptions to comply with humane hunting rules. The EU or its Member States could also ban many other animal products, particularly furs of animals not used for food, which are currently being imported into the EU, as well as being produced there.